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"Private" entity vs "public" entity limiting 2a rights

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Regular Member

OK - we all know of a few businesses that don't support 2a rights. Often times, it is stated that companies may choose to limit 2a rights on their property because they are "private" entities. While this may be true of your mom and pop outfit, companies like Target (which is considering suspension of 2a rights in its stores) are not, under any legal definition - "private". A private company is one that is not traded openly in the stock market. Since Target is part of the S&P 500, it is considered a "public" company. Additionally, its stores are considered "public" locations, in that it welcomes the general public to its place of business at all hours of operation. Finally, the fact that Target does not charge any form of "membership" fee or "non-member surcharge" like Costco or Sam's club removes any claim they could have about being a "private" entity.

So on what basis can a public company claim it has the right to infringe on the exercise of 2a rights, when the same company is prohibited from any other discriminatory acts (such as a refusal to serve people of color or homosexuals)? Which leads to the next question. A bakery (true private entity) was just ordered to make a wedding cake for a gay couple (in a state in which gay marriage is illegal) over the religious objections of the owner. Now being gay is not against the law anywhere in the US that I know of (though many homosexual acts are still outlawed in many places), just as 2a rights are rightfully respected in many jurisdictions. So, what is the difference between a sign that requires you to "check your weapon at the door" and one that requires a person to "check their gayness at the door"? Both would be discriminatory when viewed through a lens of "equal treatment", are they not?

Now yes, some folks will say "Why would you go to a store that wants to infringe on your rights?". Simple - for the same reason that the gay couple sued the baker - to create a change in what they (and in the case of 2a - what we) deem as an injustice and a violation of our constitutional rights. So perhaps its time to really look at the legalities of some companies actions and start holding them accountable for their violation of our rights. Right now, much of society frowns on the exercise of 2a rights simple because they have been taught badly. A major case of constitutional rights violations would undoubtedly inform a lot of people about the rightness (horrible term, I know) and legality of 2a.

Campaign Veteran

When asked to leave or conditionally denied entrance according to any whim they may choose, they're only infringing on your "right" to be on that property (yet, no such right exists).

You are nothing more than a guest on another's property - a privilege which may be denied or rescinded at any time. Loud talking may be prohibited or get you ejected as well despite your rights being protected via the 1A from certain government intrusions.

If you choose to comply with any rules or prohibitions they impose as a condition of using their property, your rights have not been infringed - you waived them.

Regular Member

I think this "conditional denial" concept gets too much reverence. If someone tells you to get off their property, and stay off, they have as much right to do that on the basis of your gun ownership as they would to do it on the basis of your speech. (And as little moral high ground and as much earned scorn, as well.) If someone gives you a conditional permission, that you may be present on condition that you do not say X or Y, and you say X or Y, they'll promptly ban you, but you aren't trespassing in an criminal sense for having said X or Y. Also, the particular condition of a concealed weapon means they are invading the contents of your clothing - typically considered to be not only the wearer's own private property, but a private property of some privacy interest - takes it one step further. It then becomes analogous to forbidding people who *think* X or Y, and then, when they speak out, having criminal charges brought against them for having concealed those thoughts on the premises. They're using their control over their property to pry into yours.

Private property owner's rights regarding trespass sound in civil tort. Criminal trespass is the right of the state - you need only look as far as the heading on the criminal proceedings, and the inability of private persons to bring charges. So how private is the action, really? Private property owners could ask for damages, yes, but a person willing to cover those should be able carry unless personally and fully banned.

Also, depending on State, there may be no legal basis for charges based on a conditional denial. Louisiana, for example, has crimes for entering where a person is forbidden, or remaining afterward, but nothing on entering with possession of a forbidden item. Snacks in a theater, accordingly, are not a crime - though staying after management tells you to leave is another matter. Louisiana's CHP regulations suggest that the card becomes legally inert under some version of conditional permission. But as far as OC goes, I'm unconvinced stores can issue the conditional denial with criminal effect. I'm not suggesting that anyone test this - it's a nigh certain criminal case, and those are annoying - but it does bother me that so many of us are ready to concede a limitation on our rights as being justified by an intrusively expansive understanding of land rights when there is some question as to whether the limitation even exists in the law.

Regular Member

IMHO, you have proffered the proper rational seigi, individuals are being asked to leave for whatever policy reason and if you refuse it falls under state statutes as trespass ~ a criminal infraction.

the fact those establishments are publicly advising the public about their restriction(s) on OC/CC'g is nothing more telling the public about their 'policy(ies)', e.g., running through the store naked, etc., and the resulting action if you pursue OC/CC'g in their establishments. I am sure it is similar to smoking in their facilities, there is a policy against it, if you refuse to heed management's guidance when confronted to 'put it out', you will face trespass charges not a charge 'the idiot was smoking in our store'!

the individual was violating our policy, was advised of same, refused to cease, so we call authorities and prosecuted for trespass.

finally their pocket books are deeper than mine so i'll just take my money elsewhere.

Were it actual private property owned by a private entity, I would agree. However, when dealing with something like Target, your not dealing with a private entity, but rather a public one. Given that their business is open to the general public, claiming this is about "private property rights" is simply incorrect. Let me give you an example of WHY this is the case....

Let's say you own a parcel of private land and you decide that black or hispanic person is not allowed on your property. In addition, you are not going to let gays or crossdressers on it either. Finally, you refuse to let anyone of any religion except your own (whatever it may or may not be) access to your property. Given that it is private land and not involved in the process of business with the public, any of the above "special classes" of people would get absolutely nowhere trying to sue you over your "policy".

Now - take those same protected classes - and tell them they are not allowed to walk into Target because of corporate policy. Think they have a lawsuit then? Yes, of course they do - because the corporation exists doing business with the general public, and as such to say that it will refuse to allow any of the above into their stores on "any whim they may choose" would see them paying out huge settlements. Why? Because being black or hispanic or gay or choosing to crossdress does not make a person "less" than anyone else. They are either "born" that way or choose to act that way - well within their own legal rights to do so. We as 2a'ers are simply also exercising our own legal rights - and are being discriminated against by those public corporations that seek to restrict our rights. It is just as discriminatory for a public company to tell a 2a'er that they are not allowed to enter a location because of them carrying as it would be for that same public corporation to tell a non-caucasian gay crossdresser that they are not welcome either.

You are nothing more than a guest on another's property - a privilege which may be denied or rescinded at any time. Loud talking may be prohibited or get you ejected as well despite your rights being protected via the 1A from certain government intrusions.

Such "loud talking" policies exist and have been upheld because they specifically involve actions taken by one party that infringe upon the rights of another. For example, you go to a movie theater and yell loudly and continually - disrupting the ability of the audience to hear the movie. By such action, you are infringing on the right of the business to provide the service or product they have been paid for, and as such your "speech" is not protected per se, and will see you forced to leave. However, the example you give has nothing to do with the question, since exercising one's personal 2a rights (whether open or concealed carry) does not create an inability for the business to proceed with its normal functions, and thus does not infringe upon them. For this reason, your example does not apply.

If you choose to comply with any rules or prohibitions they impose as a condition of using their property, your rights have not been infringed - you waived them. There is no conflict of rights here.

You are correct when you say "IF you choose to comply...." there is no conflict of rights because you waive them. What is a conflict of rights is that a public company creating a policy that restricts the rights of a person to act in a legal (and in the case of our discussion, Constitutionally protected) manner is a restriction of their personal freedom. Given that we are talking 2a, I maintain that it is an unlawful restriction in those states where 2a rights are respected by the State. There is no difference in the discrimination of telling a man he can't wear his sidearm and telling him he can't wear a sundress. Both are infringements on a person's civil liberties and therefore are unlawful. As such, public entities (not private ones) should be held accountable for their attempts to violate them.

Absolutely! If its a private company or a private individual on their own property - then no. But when it is a public company who does business with the general public, such "conditional denial" is no different than telling a person that they can't enter into an establishment because they are the wrong gender, sexual orientation, color, too fat, too skinny, bald, don't have a mustache or are wearing clothes that the business finds offensive.

So tell me someone....
Does Target have the right to bar a customer from wearing a shirt that promotes an idea they don't like? Do they have a right to turn away a gay person just for being gay? Or a crossdresser for being a crossdresser? If not - then what legal grounds do they have to do so when it comes to 2a - when 2a is historically much more codified and far greater guaranteed as it is an Amendment to the Constitution?

Please explain then how a private entity can be held liable for acts of discrimination taking place on their own property. Then explain how discrimination on race/gender/orientation/dress/body type/etc. differs from that of discrimination against 2a'ers. If they are truly "private" - then they could not be held liable for discrimination EXCEPT that they do business - which means discrimination - however applied - is legally actionable. Even against 2a'ers.

Regular Member

private and public have to do with incorporation concepts and how it is governed.

A public corporation is one created by the state for political purposes and to act as an agency in the administration of civil government, generally within a particular territory or subdivision of the state, and usually invested, for that purpose, with subordinate and local powers of legislation; such as a county, city, town, or school district.

Private corporations are those founded by and composed of private individuals, for private purposes, as distinguished from governmental purposes, and having no political or governmental franchises or duties.

The true distinction between public and private corporations is that the former are organized for governmental purposes, the latter not. The term “public” has sometimes been applied to corporations of which the government owned the entire stock, as in the case of a state bank. But bearing in mind that “public” is here equivalent to “political,” it will be apparent that this is a misnomer. Again the fact that the business or operations of a corporation may directly and very extensively affect the general public (as in the case of a railroad company or a bank or an insurance company) is no reason for calling it a public corporation. If organized by private persons for their own advantagehttp://thelawdictionary.org/public-and-private/

actually both examples are private corporations since they have no governmental purpose yet are traded publicly on the stock market for the sole purpose to generate operating capital and revenue for their private stockholders ~ in the case of the Mars corp, monies stay in the Mars family stockholders per se and where targets goes to 'employees'

therefore, the property the private corporation owns is considered as private property as the property your home sits on.

So you are saying that if you are the owner of land that does no commerce, you can still be held liable for discrimination if you only let straight white people visit you?
You are saying that since it is the same, that a company can - on their property - lawfully discriminate between who they will interact with through commerce? They can - without legal ramifications - decide not to serve blacks, gays, or crossdressers? Would you like to bet on that?

It is in the action of commerce that they are not allowed to discriminate - however, by restricting the rights of 2a'ers - they are doing the same thing as saying "no blacks allowed in this store". Both are violations of the rights of the individual, so again I throw out the challenge - show me where there is a legal distinction between refusing access to offered services/products to a crossdresser because of how he is dressed and refusing access to offered services/products to a person exercising their legal rights by carrying.

There is no difference - and it is this that makes me wonder why such entities have not had the crap sued out of them for discrimination.

Legendary Warrior

So you are saying that if you are the owner of land that does no commerce, you can still be held liable for discrimination if you only let straight white people visit you?
You are saying that since it is the same, that a company can - on their property - lawfully discriminate between who they will interact with through commerce? They can - without legal ramifications - decide not to serve blacks, gays, or crossdressers? Would you like to bet on that?

It is in the action of commerce that they are not allowed to discriminate - however, by restricting the rights of 2a'ers - they are doing the same thing as saying "no blacks allowed in this store". Both are violations of the rights of the individual, so again I throw out the challenge - show me where there is a legal distinction between refusing access to offered services/products to a crossdresser because of how he is dressed and refusing access to offered services/products to a person exercising their legal rights by carrying.

There is no difference - and it is this that makes me wonder why such entities have not had the crap sued out of them for discrimination.

Regular Member

Note title II, which does bear straight to the heart of companies that engage in "public accommodation" for the purpose of interstate commerce. Retailers such as Target would apply as such.

The problem is that the CVA does not offer protection for many things that are actionable - for example: straight guys that want to go shopping in a sundress.....

Also note that the CVA does not enumerate protections for sexual orientation, but such protections have been judicially added. It is my contention that the same could be used to protect our right to carry.

Because the CVA does not discuss speech, if Target (or any other large retailer) were to throw someone out of its store because they wore a T-shirt that advocated a controversial issue - say an anti-abortion shirt, or an anti-immigration shirt, or an anti-islam shirt... would they be facing a civil suit? What if they tossed someone out who wore a pro-abortion shirt, or a pro-immigration shirt, or a pro-islam shirt? In the first case - maybe, but few people would be willing to push the matter. On the other hand, if it were the latter - the people willing to do take Target "to task" would be coming out of the woodwork.

Too many people on our side are willing to get pushed around over these "conditional" permissions. Tell me - where in the Constitution did 2a become "conditional"?

Yes - private property is an exclusion - but "private property" used for "public accommodation" is not the same thing and does not offer the same protections to the corporate entity.

Legendary Warrior

Note title II, which does bear straight to the heart of companies that engage in "public accommodation" for the purpose of interstate commerce. Retailers such as Target would apply as such.

The problem is that the CVA does not offer protection for many things that are actionable - for example: straight guys that want to go shopping in a sundress.....

Also note that the CVA does not enumerate protections for sexual orientation, but such protections have been judicially added. It is my contention that the same could be used to protect our right to carry.

Because the CVA does not discuss speech, if Target (or any other large retailer) were to throw someone out of its store because they wore a T-shirt that advocated a controversial issue - say an anti-abortion shirt, or an anti-immigration shirt, or an anti-islam shirt... would they be facing a civil suit? What if they tossed someone out who wore a pro-abortion shirt, or a pro-immigration shirt, or a pro-islam shirt? In the first case - maybe, but few people would be willing to push the matter. On the other hand, if it were the latter - the people willing to do take Target "to task" would be coming out of the woodwork.

Too many people on our side are willing to get pushed around over these "conditional" permissions. Tell me - where in the Constitution did 2a become "conditional"?

Yes - private property is an exclusion - but "private property" used for "public accommodation" is not the same thing and does not offer the same protections to the corporate entity.

Regular Member

So you are saying that if you are the owner of land that does no commerce, you can still be held liable for discrimination if you only let straight white people visit you?
You are saying that since it is the same, that a company can - on their property - lawfully discriminate between who they will interact with through commerce? They can - without legal ramifications - decide not to serve blacks, gays, or crossdressers? Would you like to bet on that?

It is in the action of commerce that they are not allowed to discriminate - however, by restricting the rights of 2a'ers - they are doing the same thing as saying "no blacks allowed in this store". Both are violations of the rights of the individual, so again I throw out the challenge - show me where there is a legal distinction between refusing access to offered services/products to a crossdresser because of how he is dressed and refusing access to offered services/products to a person exercising their legal rights by carrying.

There is no difference - and it is this that makes me wonder why such entities have not had the crap sued out of them for discrimination.

i'm sorry but yes your perception is incorrect. this is how 'private' clubs, golf, bars, organizations, etc., get away with the blatant discrimination because they are private with specific policies calling out who they serve and do discriminate only letting those individuals in they wish who meet their policies.

there are some exclusive gay clubs who do not let patrons in who look and dress like straights (sarcasm).

remember there was one major golf tour which until a few years ago had no person of color play in or win their tournament. only reason they capitulated was because 'members became enlightened'...

one national youth organization just finally dropped their 'discriminatory' youth practices only to exclude gay adult leaders. government can't say a word as it is a private organization.

so just for the record, you are stereotyping...men are not the only individuals engaging in the practice as there are women who also cross dress, cher, judy garland (who looked better as a man actually), bet midler, all got their start playing in the gay clubs around the nation. a rose by another name is cross dressing!!

btw, you wouldn't be able to tell a good cross dresser if properly attired and they are always welcome to join me for dinner or a drink.

Regular Member

i'm sorry but yes your perception is incorrect. this is how 'private' clubs, golf, bars, organizations, etc., get away with the blatant discrimination because they are private with specific policies calling out who they serve and do discriminate only letting those individuals in they wish who meet their policies.

You are correct, but there is nevertheless a flaw in your argument. You are talking oranges and I am talking apples. Private clubs, golf/bars etc. are not directly involved in interstate commerce with the general public. Companies like Target, AMC Theatres, Costco, etc - are involved in such commerce and thus fall under a different set of rules. It is why private clubs could bar based on gender, but "big box retailers" may not....

there are some exclusive gay clubs who do not let patrons in who look and dress like straights (sarcasm).

Still another orange. This one is closer however, as it does to a point involve instate action (though not direct interstate commerce). However, the PGA lifted its ban on black players in 1961, 3 years BEFORE CVA1964, so the point would be moot even if it did apply.

one national youth organization just finally dropped their 'discriminatory' youth practices only to exclude gay adult leaders. government can't say a word as it is a private organization.

Is it just me, or can anyone else see that the BSA is an entirely different type of entity that a big, multistate retailer? C'mon. Talk apples.

so just for the record, you are stereotyping...men are not the only individuals engaging in the practice as there are women who also cross dress, cher, judy garland (who looked better as a man actually), bet midler, all got their start playing in the gay clubs around the nation. a rose by another name is cross dressing!!

Centurion

The fact that an ENTITY ships goods across a state line or even an international one has absolutely zero impact on if that entity is public or private.

A public entity is a government office, agent, buearacracy, or department (all whatever additions the thesaurus may suggest) where it is funded by taxes or fee assessed upon other by an act of the government whether a local elected sewer, ambulance, or fire district, to a city or town and its parks, police, fire or zoning commission, county and all of its departments or agencies, state, federal regions, or NATIONAL. A private entity is one owned, controlled by a private entity whether that entity be a person, partnership, or a group or association of persons from 1 to 2 million or more.

ANY private entity, business, association, partnership may invite any number of persons or other entities both public and private into the location where business is conducted to enable the exchange of US dollars, other products, or anything else of agreed value for the products of the business. The little mom and pop store is just as much private as the huge international conglomeration owned my millions of share holders and governed by a board of directors.

Regular Member

ok, there seems to be a definition of a term which requires quantifying...

quote
public property: Any property that is not owned by a private individual or a company. It belongs to the public at large and not to any one person. It covers premises and facilities that are owned by the government or a community.
unquotehttp://thelawdictionary.org/public-property/

therefore, by this definition, unless the property is owned by the government or a community it is considered private.

public corps are governmental while as pointed out private corps are owned by private entities.

so in my example, the golf clubs, clubs, BSA councils, retailers, etc., are not governmental corp entities. therefore their property is private by law, and again if they have a policy in place discriminating, therefore they can. if someone complains, the private entity has a huge pocket book to pay for their legal defense and unless the injured party can find a sponsor, it comes out of their pocket directly.

the 'ACT' initially specifically addressed employment activities, public voting & facilities, as well as education. eventually, through the years, other national splinter groups pitched a fit and through their national consensus commonality, huge amounts of money, and years pursuing issues through judicial systems, finally pushing through changes into individual state's law. if you believe the 'ACT' worked, then you should be sadly disappointed.

sorry if you thought i made a fruit salad but in my BSA example, it is a huge national entity with enterprises in almost every county in this nation (which national retailer has that coverage) and because they are a private corp they do discriminate with impunity because they have policies in place that says they can. i am sure the national retailers you reference have policies in place but because they are not widely disseminated, stay below the national consensus groups purview...

Which is what this threads purpose is - to discuss whether or not such retailers are in violation of our rights. This is why I used the example of a retailer - not a golf club.
I contend that it is a violation of our civil rights (and constitutional rights) and that if retailers faced legal repercussions over the matter, the policy would change.

@solus - your kind of making my argument for me.... Yes, the act only related to employment initially. Yet you admit that other groups with "special interest" - which we all are as well - created a change in how the law is applied. I am simply suggesting that we as 2a'ers do the same. While we can argue semantics all day - and I do see your point, cases like Jonsson v Crossfit wouldn't be happening right now if the standards you use were applied. I would rather discuss what actions could be taken to move the "cause" of 2a forward than bandy questionable legal concepts regarding big box retailers status as "public" or "private".

So the purpose was to basically say why don't we take these anti-2a companies to task through the courts for violations of our constitutionally protected rights? Has it ever been tried? If it works for one group, it is worth at least CONSIDERING as a type of action that would further the protection of 2a. I believe that decisions that have lessened the "private" property rights of those that do interstate business with the general public make such an action potentially viable.